Position Statement Background Information: Sexual Harassment

Summary: ANA is deeply committed to the principles of civil rights and opposes any form of discrimination against individuals or groups of individuals based on sex, race, age, national origin, religion, disability, or sexual orientation. ANA believes that nurses and students of nursing have a right to and responsibility for a workplace free of sexual harassment. Sexual harassment has an adverse impact on the health care environment.

Background

In the fall of 1991 a stunned and confused nation watched a law professor charge a Supreme Court nominee with blatant sexual harassment on prime time television. Stunned, because never before had there been this kind of media attention to sexual harassment. Confused, because the lines can seem unclear and sexual harassment is inextricably aligned to perception. Shortly thereafter the nightly news and national magazines carried stories of widespread sexual harassment and discrimination in the military. Those events brought to light something that millions of Americans already knew: sexual harassment is a pervasive, destructive, social, legal and ethical problem. And it is a problem which nurses have not escaped.

Sexual harassment, a form of sex discrimination, is one of the most persistent and destructive problems in the U.S. workplace. While potentially a problem for both sexes, the majority of sexual harassment is from men to women, and few working women have not experienced sexual harassment.

A 1988 Merit System Protection Board (MSPB) survey of the federal workforce, the nation's largest employer, found 42% of all women and 15% of all men experienced some form of harassment. In the same year, a Working Women magazine survey of Fortune 500 companies found widespread sexual harassment. One hundred and sixty human resource officers representing 3.3 million workers indicated that almost all had received at least one sexual harassment complaint in the year before the survey. A similar study was undertaken by the MSPB in 1981 which also found that 42 percent of all women employed by the federal government had experienced sexual harassment - indicating that no decrease in incident rates occurred during the seven year period despite the knowledge of its existence in the federal workforce.

Although much has been written on sexual harassment in business and industry, little has been documented on sexual harassment in nursing. In 1982, Dr. Bonnie Duldt completed a survey of 89 RNs and found that 60% had experienced sexual harassment in the workplace in the preceding year. Typically the harasser is a physician or supervisor but may be a co-worker, a patient or a visitor.

Although sexual harassment is clearly illegal, it continues, despite the high cost to the employee and the harassed individual. And, despite the protections of the law, many who have been harassed do not bring complaints. Sex role stereotyping, distribution of power and socialization are among the chief factors contributing to sexual harassment. Because of socialization which has historically taught women to lower their expectations and down play their talents, many take sexual harassment in stride, viewing it as a price for being in the workforce--or an extension of behaviors dealt with outside the workplace. For others the risks seem too great. The Merit Board study found that 52% of harassment victims did nothing about it.

Filing charges can be humiliating. Victims may feel that their charges will be ignored or down played, or they may be accused of behavior that invited the offensive conduct. They may be ridiculed, face hostility or retaliation: poor work assignments, reduced hours, poor evaluations, loss of a job. Still others don't know their rights, are confused about where the lines are drawn, or simply don't know what to do.

Duldt's study indicates that nurses, like most women, rarely reported incidents of sexual harassment to their supervisors. The greater the nurse's distress, the less likely she is to report an incident. However, 60% of the nurses who reported being harassed also reported adverse impacts of distraction from nursing tasks; a few were so distracted they felt their ability to make sound decisions was impaired.

Sexual harassment is extremely costly in terms of both human dignity and human resources. The MSBP calculated that the overall cost to the federal government due to sexual harassment totaled $267 million from May 1985 through May 1987. These cost items include $36.7 million for job turnover, $26.1 million on sick leave, $76.3 million on individual productivity and $128.2 million on work group productivity. (No comparable figures are available for the private sector). In addition, victims of sexual harassment pay the intangible emotional costs of anger, humiliation and withdrawal added to the possible monetary costs of counseling and litigation expenses.

Fortunately, the laws to protect nurses from sexual harassment are already on the books. Compliance, sound institutional policy, and nurses fully understanding their legal rights continue to be problems. What is clear, is that sexual harassment is against the law.

Since 1964, Title VII of the Civil Rights Act has prohibited discrimination in employment conditions because of an individual's sex. In 1976, it was acknowledged that Title VII also prohibits sexual harassment as a form of sex discrimination. In general, sexual harassment in the workplace includes situations where there is a demand for sexual favors in exchange for a job benefit or where an unwanted condition on any person's employment is imposed because of that person's sex.

Sexual harassment violates Title VII under two legal theories: "quid pro quo" and "hostile environment." Under both theories, the conduct in question, whether physical or verbal, must be both unwelcome and of a sexual nature. Advances are unwelcome when they are not solicited or initiated and are regarded as undesirable and offensive. Even if a person acquiesces to those advances, it cannot automatically be concluded that the advances are welcome. Also, conduct that was once acceptable but now is unwelcome may also be prohibited. Whether or not an advance is welcome is determined by the facts in each situation, i.e., on what the victims do and say, on what reactions they have to the sexual conduct, and on what kinds of interactions they have with the individual they claim has harassed them. The requirement that the harassing conduct be sexual is usually proven by such behavior as propositions, comments on the sexual areas of a person's body, dirty jokes, pictures of nude or sexually suggestive individuals, and sexually suggestive cartoons.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual..."

The 1980 EEOC Guidelines define "hostile environment" harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [that] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

In quid pro quo sexual harassment, a violation of Title VII occurs when an individual uses his or her authority to extort sexual consideration from an employee. For example, it is unlawful for a supervisor to directly or indirectly condition a job benefit on the receipt of sexual favors from a subordinate, or to punish that subordinate for refusing to comply to a request for sexual favors.

Unlawful hostile environment harassment may occur even where there has been no tangible job detriment, but where sexually harassing conduct is so severe or pervasive that it alters an employee's working conditions. Lewd jokes, sexual comments, displays of explicit or sexually suggestive material, or repeated requests for a sexual or dating relationship, are examples of actions which may attribute to the creation of a hostile environment.

Although the distinctions between quid pro quo and hostile environment harassment are often blurred, the two forms of discrimination differ in several ways. Quid pro quo harassment requires action by a supervisor. Violations under the hostile environment theory may result from the actions of co-workers and non-employers, as well. Hostile environment harassment is not limited to sexual advances. It may involve nonsexual behavior directed at an individual because of gender. While in quid pro quo cases, employers are almost always liable for the violation, in hostile environment cases, the employer is not automatically liable for the violation. In order for an employer to be held responsible for a violation of Title VII, it must be shown that the employer knew or should have known of the conduct. Under the quid pro quo theory, one incident of harassing conduct may be enough to prove a violation. In a hostile environment situation, one isolated incident is rarely enough. Unlike quid pro quo harassment, hostile environment harassment requires that the offensive conduct be continuous, frequent, repetitive and part of an overall pattern. Hostile environment harassment does not require any proof of economic injury. It is sufficient to prove that the harassing actions changed an individual's working conditions.

In addition to Title VII, there are other legal protections. Government employees may be protected under the United States Constitution and other federal legislation. Title IX of the Education Amendments of 1972 prohibits sex discrimination and sexual harassment in any educational program receiving financial assistance from the federal government. The prohibition against sex discrimination applies to students as well as employees. For example, a student or employee may sue an educational institution for sexual harassment if an official of the institution knew or should have known about the harassment and did nothing to effectively stop it.

On the state level, employees may be protected under the fair employment statutes that exist in almost every state. Most state fair employment statutes apply to public and private employers, employment agencies, and labor organizations. In addition, some state workers' compensation statutes provide remedies for employees who have been injured, either physically or psychologically by sexual harassment in the workplace. Prohibition against sexual harassment in the workplace may also be included in collective bargaining agreements and covered by other obligations by a union to its members.

The American Nurses Association strives to eliminate sexual harassment for nurses in all work settings. First and foremost, the ANA recommends that preventive measures be established. Employers of nurses must recognize the magnitude of the problem and establish policies and procedures which protect individuals from sexual harassment. Furthermore, educational programs should be offered that define sexual harassment and communicate the institutions' position, policy and procedure for reporting. Top level management and boards must demonstrate their commitment not only through verbal and written communications but through their actions. For example, suspension of admitting and practice privileges could be one form of discipline for the non-employee physician. Consistent communication and appropriate interventions must create a culture where sexual harassment is not tolerated.

The ANA recommends that every nursing employer and schools of nursing education have a written policy statement on sexual harassment. Every employee and student of nursing should be oriented to this policy at the time of employment or enrollment. A policy statement should include the purpose, the legal definition and guidelines, employee and management responsibilities, implementation procedure, grievance procedure, a non-retaliation statement and disciplinary measures for employees and non-employees. A policy statement should specify how confidentiality will be ensured. The policy statement must be visible, generally available and demonstrate the employers' commitment to the maintenance of a work environment free of sexual harassment.

If a written policy does not currently exist or the above elements are not included, an interdisciplinary committee should be convened to establish one. In those settings where nurses are represented through a collective bargaining agreement, state nurses associations should incorporate language that remedies sexual harassment complaints through grievance and arbitration procedures.

The ANA encourages all nurses to take an active role in preventive measures and policy development.